The European Court of Justice hands down an important preliminary ruling on the European Union database directive.

• Author: Blackshaw, Ian
• Position: ISLJ Case Note

Introduction

On 1 March, 2012, the European Court of Justice (ECJ) handed down an important preliminary ruling on the meaning and effect of the European Union (EU) Database Directive of 1996 (96/9/EC) (Directive) on the legal protection of sports databases. This ruling has generally gone unnoticed, perhaps because it deals with an esoteric and sophisticated aspect of Copyright Law, which, in any case, is a highly technical subject.

The ECJ ruling was in response to a preliminary reference under Article 267 of the TFEU from the English Court of Appeal in the case of Football Dataco Ltd et al v. Yahoo UK Ltd et al (Case C-604/10-ECJ). The full Judgement of the Third Chamber of the ECJ can be accessed at http://curia.europa.eu/juris/document.

This case concerns English and Scottish Football League Fixture Lists, in which the plaintiffs claim they own copyright under the provisions of Article 3 of the Directive, whereas the defendants (all seven of them) claimed that such copyright does not exist in Law and, therefore, they are entitled to use these Lists for the purposes of their business without having to take a Licence from the plaintiffs and pay any corresponding royalties.

Article 3(1) of the Directive provides as follows:

"In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection." For the purposes of the Directive, Article 1(2) defines a database as follows:

".... a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means." Case C-604/10-ECJ

At first instance, the English High Court held that such copyright did exist in the plaintiffs' database on the facts of this particular case, whereas, on appeal, the English Court of Appeal was not so sure and, therefore, referred the matter to the ECJ for a preliminary ruling on the following questions that arose to be determined in the case:

1 Whether the intellectual effort and skill of creating data should be excluded in connection with the application of art 3(1) Directive 96/9/EC; Whether the "selection or arrangement" of the contents, within the meaning of that provision, includes adding important significance to a pre-existing item of data, and; Whether the notion...